Vikas Balakdas Mahant vs Mrs. Savita Vikas Mahant And ...
2015 Latest Caselaw 308 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR
                        Criminal Writ Petition No. 5 of 2015




                                                 
     Vikas Balakdas Mahant,
     aged 45 years,
     occupation - service,
     resident of Khurasgaon,




                                      
     Tq. Saoner,
     Distt. Nagpur.           ig                     .....           Petitioner.


                                      Versus
                            
     1.     Mrs. Savita Vikas Mahant,
            aged 36 years,
            occupation - nil,
      

     2.     Ku. Shamli Vikas Mahant,
            aged 17 years,
   



            occupation - student,
            through her Natural Guardian
            mother Mrs. Savita Vikas Mahant,

            both residents of Hill Top,





            near Dr. Babasaheb Ambedkar
            statue, Nagpur.                        .....        Respondents.



                                     *****





     Mr. U.A. Gosavi, Adv., for the petitioner.

     Mr. Masurkar, Adv., holding for Mr. M.G. Wagh, Adv., for
     respondents.

                                       *****




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                                    CORAM :        V. M. DESHPANDE, J.

                                    Date       :   09th Sept., 2015.




                                                  
     ORAL JUDGMENT:

01. Rule. Rule is made returnable forthwith. Learned Adv. Mr.

Masurkar holding for Mr. M.G. Wagh, Adv., waives service for

respondents. Heard learned counsel for the rival parties. By consent

of rival parties, this Criminal Writ Petition is taken up for final hearing

and disposed of by this Judgment and Order.

02. By the present petition, the petitioner is challenging the

order dated 16th October, 2014 passed by learned Judge of the Family

Court No.1, Nagpur, below Exh.6, in Petition No. E-472 of 2013,

thereby allowing the interim application for maintenance.

03. Respondent nos. 1 and 2 filed an application under Section

125, Criminal Procedure Code, for maintenance. The said proceedings

are registered as Petition No. E-472/2013. By the said application, the

respondents claimed maintenance at the rate of Rs. 10,000/- and

Rs.15,000/- respectively for them.

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04. An application for interim maintenance is also filed. The

same is at Exh.6. The petitioner, who is non-applicant in the

proceedings before the Family Court, has filed the reply.

The solemnization of marriage between the petitioner and

respondent no.1 on 9th April, 1995 is not in dispute. Further, the

paternity of the petitioner in respect of respondent no.2 is also not

denied.

The age of the respondent no.2, who is a daughter of the

petitioner, is seventeen years. Thus, she is a minor. Admittedly, she

is a meritorious student and she requires educational expenses.

05. In fact, in the reply filed before the Family Court, the

petitioner has admitted that the respondent no.2 has scored ninety-

three percent of marks in her Secondary School Certificate [SCC]

Examination.

Though the petitioner has denied the extent of land as

claimed by respondent nos. 1 and 2, he has admitted that he is having

1.5 acre of land in his name. He has also admitted that he has

purchased various golden and silver ornaments and LIC policies. He

has also admitted that he has purchased a plot.

06. Learned Judge of the Family Court allowed the application

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[Exh.6] filed on behalf of respondents. The court below directed that

the petitioner shall pay Rs. 3,000/- per month to each of the

respondents towards interim maintenance, and also pay Rs. 50,000/-

to the respondent no.2 - daughter towards her educational expenses

as an interim arrangement.

07.

This is assailed before this Court. According to learned

counsel for the petitioner, the learned Judge of the Family Court has

enlarged the scope of the provisions of Section 125, Criminal

Procedure Code, by referring to Section 3 (b) of the Hindu Adoption

and Maintenance Act by directing the petitioner to look after the basic

needs as well as educational expenses of the respondents. According

to him, by taking recourse to the said Section, the Court below has

exceeded in its jurisdiction while deciding the application for interim

maintenance. In order buttress his submission, he relied upon a

reported decision of the Apex Court in the case of Savitaben

Somanbhai Bhatiya Vs. State of Gujrat [2005 AIR (SC) 1809].

Except this submission, no other point was raised before this Court at

the time of arguments.

08. The reliance placed on the aforesaid decision of the Apex

Court by the learned counsel, in my view, is highly misplaced, since

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the said case is clearly distinguishable on the facts itself.

09. While considering the submission about the scope of

Section 125, Criminal Procedure Code, I am reminded of an

authoritative pronouncement of Hon'ble Apex Court in the case of

Shail Kumari Devi & another Vs. Krishan Bhagwan Pathak alias

Kishun B. Pathak [AIR 2008 SC 3006]. Reproduction of Paragraph 21

of the said authoritative pronouncement will be useful and it is

reproduced hereunder:-

"21. So far as `interim' maintenance is concerned, it is true that Section 125 of the Code as it originally enacted did not expressly empower the Magistrate to

make such order and direct payment of interim maintenance. But the Code equally did not prohibit the

Magistrate from making such order. Now, having regard to the nature of proceedings, the primary object to secure relief to deserted and destitute wives, discarded and neglected children and disabled and helpless parents and to ensure that no wife, child or parent is left

beggared and destitute on the scrap-heap of society so as to be tempted to commit crime or to tempt others to commit crime in regard to them, it was held that the Magistrate had `implied power' to make such order. The jurisdiction of the Magistrate under Chapter IX (Order for Maintenance of Wives, Children and Parents) is not

strictly criminal in nature. Moreover, the remedy provided by Section 125 of the Code is a summary remedy for securing reasonable sum by way of maintenance subject to a decree passed by a competent civil Court. Hence, in absence of any express bar or prohibition, Section 125 could be interpreted as conferring power by necessary implication to make interim order of maintenance subject to final outcome in the application."

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In view of the aforesaid dictum, it is crystal clear that in

absence of any express bar or prohibition, Section 125, Criminal

Procedure Code, could be interpreted as conferring power by

necessary implication to make interim order of maintenance.

Therefore, even without resorting to the provisions of Section 3 (b) of

the Hindu Adoption & Maintenance Act, the Court exercising powers

and jurisdiction under Section 125, Criminal Procedure Code, will be

within its ambit to pass necessary orders for interim maintenance.

Section 125 of Criminal Procedure Code does not prohibit or

debar such court to grant necessary order for meeting the requirement

of a ward or a child in respect of the educational expenses. Therefore,

in my view, no wrong is committed by the court below while awarding

the amount towards educational expenses of respondent no.2,

especially when respondent no.2 is a meritorious student and has

cleared her SCC Examination with flying colours.

Respondents have filed two Receipts of Rs.64,000-00 and

Rs. 40,000-00 in respect of payment of the fees for taking necessary

educational help from the classes, and also passed a Pursis [Exh.30],

stating that one more installment is also required to be paid. It is

stated in para 7 of the main application under Section 125, Criminal

Procedure Code, by the respondents that the respondent no.2 is

studying in XIth Standard in Dharampeth Science College and she is

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taking coaching in "Ali's Medical Coaching Classes". It is also stated

that she has to pay fees of Rs.1,35,000/- towards coaching. The said

assertion in the application appears to have been supported by the

receipts filed on record for Rs. 64,000/- and Rs. 40,000/-. In that view

of the matter, no fault can be located in the order passed by the

learned Judge of the Family Court directing the petitioner to pay Rs.

50,000/- towards educational expenses. It is the utmost duty of a

father not only to take care of his daughter/son, but at the same time,

the father is under obligation to provide best possible education. In

the present case, respondent no.2 by securing 93 per cent of marks

has shown that she deserves the best education to create her future

and she is able to do so. Therefore, the father cannot be allowed to

escape his liability of providing financial assistance to her by taking

recourse to the technical submissions.

10. From the reply filed on behalf of the petitioner, it is clear

that he is a well off person. Petitioner is a person who can purchase a

plot in the city of Nagpur, golden and silver ornaments, though at the

instance of his wife as claimed by him in his reply and also the LIC

policies, however, fact remains that he is having sufficient means. He

himself has admitted that he is working with Western Coalfields Ltd..

However, according to him, his salary is not to the extent as claimed

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by the respondent.

At the time of passing of the impugned order, the court

below was deciding the application for interim maintenance. The main

proceedings are still pending. It is always open to the

petitioner/husband to prove his case by adducing sufficient evidence.

However, in view of the pleadings available on record and the

documents as referred herein above, in my view, there was sufficient

material before the learned Judge of the Family Court to pass the order

allowing the application for interim maintenance.

11. Upon the aforesaid discussion, I see no reason to upset the

order passed by the Family Court. Hence Writ Petition No. 5 of 2015 is

dismissed, however, no costs. Rule is discharged.

Judge

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